Original proceeding in discipline. Opinion filed March 7, 2003. Published censure.

Alexander M. Walczak, deputy disciplinary administrator, argued the cause
and was on
the brief for petitioner.

Keith D. Hoffman, of Abilene, argued the cause and was on the briefs for
respondent, and
Allen B. Angst, respondent, argued the cause pro se.

Per Curiam: This is an original contested proceeding in discipline filed by
the
Disciplinary Administrator against respondent Allen B. Angst, of Abilene, an attorney admitted
to the practice of law in Kansas on May 28, 1982. The alleged misconduct arose during the
course of representation of respondent's client, Karen R. Sims, in a contested probate case
involving the estate of Geraldine Reed.

Highly summarized, the facts underlying these allegations are as follows:

At the time Sims retained respondent, they entered into a written fee agreement whereby
Sims agreed to pay respondent "$2,500.00 as a retainer, plus recorded time at an hourly rate of
$95.00 per hour" plus various costs. During the course of the representation, Sims paid
respondent a total of $4,743.30, plus the court awarded respondent fees from the estate in the
amount of $475. Thus, the total fee received was $5,218.30.

The panel found the unrefundable retainer language contained in the fee agreement
violated the KRPC. As such, the $2,500 paid by Sims was a refundable fee that the respondent
must have earned at his hourly rate in order to retain. The panel further found the fees were
unreasonable contrary to KRPC 1.5(a) and that respondent failed to return the unearned fees in
violation of KRPC 1.16(d).

"If the contract or agreement between the attorney and the client clearly states that the fee
advanced is paid as a nonrefundable retainer to commit the attorney to represent the client and
not
as a fee to be earned by future services, then it is earned by the attorney when paid and is the
attorney's money. If, on the other hand, the retainer is to be earned by future services performed
by the attorney, then it remains the client's money and subject to MRPC 1.15."

We went on to say that "[a]bsent clear language that the retainer is paid solely to commit the
attorney to represent the client and not as a fee to be earned by future services, it is refundable."
265 Kan. at 760. The panel concluded the contract lacked the "clear language" requirement set
forth in Scimeca.

Respondent filed exceptions to a number of the conclusions of law relative to violations
of KRPC 1.5(a) and KRPC 1.16(d). For unknown reasons, the respondent, the Disciplinary
Administrator and the hearing panel final report failed to mention the respondent's stipulations,
which are determinative of these alleged violations. The transcript of the panel hearing reflects
the following exchange occurred at the beginning thereof:

"CHAIRMAN RIDENOUR: . . . One other preliminary matter that­that I
have is that
there's a stipulation in the answer that says the Board may find a violation. 'May' can sometimes
be a little bit of a deceptive word. 'May' can be used in the sense that there could possibly have
been a violation or 'may' in the sense that there was a violation. And if so, I guess we would like
to know which allegations are­are stipulated that there's a violation of.

"MR. HOFFMAN [Defense Counsel]: Yes sir, we are stipulating that there was a
violation.

"CHAIRMAN RIDENOUR: Now, of­of 1.5 then dealing with fees?

"MR. HOFFMAN: Yes, sir.

"CHAIRMAN RIDENOUR: And then, let's see, 1.16, then are you stipulating to
that,
also?

"MR. HOFFMAN: Yes, sir.

"CHAIRMAN RIDENOUR: 1.16(d) has to do with termination of representation
and
refunding of advance payment of a fee not­

"MR. HOFFMAN: Yes, sir.

"CHAIRMAN RIDENOUR: So you're stipulating to that one, also?

"MR. HOFFMAN: Yes, sir.

"CHAIRMAN RIDENOUR: All right. Also what about 8.4(c).

"MR. HOFFMAN: On the 8.4(c) where it says, 'In engaging in conduct involving
dishonesty, fraud, deceit or misrepresentation,' our answer does not stipulate to that violation.

"CHAIRMAN RIDENOUR: All right. So there's a stipulation of 1.5 and
1.16(d)?

"Members of the Panel, the Petitioner proposes to call three witnesses in its case
as to
showing that the conduct engaged by the Respondent involved willful, intentional dishonesty as
to
the billing. First to call would be the Respondent, the investigator, finally the victim in this case.
Plus, the victim will also testify as to matters in aggravation in the aggravation
sentencing­mitigation stage. Thank you."

Thus only the charged violation of KRPC 8.4(c) (misconduct involving dishonesty, fraud,
deceit, or misrepresentation) was before the panel for determination. The panel found that the
petitioner had failed to establish this violation by clear and convincing evidence. Therefore,
exceptions to the panel's findings relative to KRPC 8.4(c) are not before us.

As far as the panel's findings of fact and conclusions of law are concerned, all that is
properly before us relates to the uncharged violation of KRPC 1.15(b) found by the panel. KRPC
1.15(b) states that upon request by a client, a lawyer "shall promptly render a full accounting." It
is unclear whether respondent is challenging the panel's power to find a violation, when such
violation is not alleged in the formal complaint.

In State v. Caenen, 235 Kan. 451, 681 P.2d 639 (1984), the court addressed
the
requirements of a disciplinary complaint to ensure due process. Such requirements include fair
notice of the charges which are sufficient to inform the attorney and provide him or her with a
meaningful opportunity for explanation and defense. The hearing panel in respondent's case
correctly cited to the rules laid down in Caenen and applied them to respondent's
case.
Specifically, in paragraph 4 of the final hearing report, the panel relied on paragraph 9 of the
petitioner's complaint and determined that it would support a finding of an additional rule
violation. Paragraph 9 alleged:

"9. On December 10, 2000, Karen Sims wrote the Respondent requesting the
return
of $1,000.00, and a detailed accounting of all of his billings. . . . The Respondent did not refund
any of the advanced fees that were not earned, and did not provide an itemized statement as Ms.
Sims had requested, or even tell her how much time he had actually spent on the case and he has
yet to do that."

Thus, it was appropriate for the panel to consider this additional rule violation.

Further, the panel's conclusion that respondent did in fact violate Rule 1.15(b) is
supported by the record. After the client requested an accounting, respondent refused to provide
such an accounting unless the client agreed he could bill her for his efforts. Furthermore, the
respondent, in his own testimony, agreed he was duty bound to provide an accounting and did not
act appropriately. The panel's findings and conclusions as to this violation are adequately
supported by the record.

Finally, respondent takes several exceptions concerning the hearing panel's findings and
application of the factors outlined by the American Bar Association in its Standards for Imposing
Lawyer Sanctions (1991). Pursuant to Standard 3, the factors to be considered are the duty
violated, the lawyer's mental state, the potential or actual injury caused by the misconduct, and
the existence of aggravating or mitigating factors.

Little would be gained by addressing these exceptions individually. Each relates to the
panel's process of reaching its recommended discipline. The panel recommends published
censure plus repayment by respondent of $2,500 to Sims and $475 to the probate estate. In his
brief, respondent requests that we adopt the panel's recommended discipline. Further, respondent
has presented evidence he has repaid the $2,500 to his client and the $475 to the probate court for
distribution to the heirs in the probate estate. Under these circumstances, respondent is not in a
position to challenge the panel's reasoning process.

We therefore conclude that the panel's findings and conclusions supporting violations of
KRPC 1.5(a), 1.16(d), and 1.15(b) are supported by clear and convincing evidence, and we
conclude respondent committed these violations. We further accept the panel's recommended
discipline of published censure.

IT IS THEREFORE ORDERED that Allen B. Angst be and is hereby disciplined by
censure in accordance with Supreme Court Rule 203(a)(3) (2002 Kan. Ct. R. Annot. 224) for his
violations of the Kansas Rules of Professional Conduct.

IT IS FURTHER ORDERED that this opinion be published in the official Kansas
Reports, and that the costs herein be assessed to the respondent.

ABBOTT, J., not participating.

DAVID S. KNUDSON, J., assigned.1

1REPORTER'S NOTE: Judge Knudson, of the Kansas Court
of Appeals, was appointed to hear
case No. 89,371 vice Justice Abbott pursuant to the authority vested in the Supreme Court by
K.S.A. 20-3002(c).